Circuit Judge, dissenting:
I respectfully dissent. The fragmentary state of the record in this case makes possible the various interpretations of the actions below, which are reflected in the three separate opinions of this panel. Because my interpretation differs from those of my brethren, and because the incomplete record — in my view — renders summary judgment improper, I would reverse and remand to the district court, so that this case could proceed to trial.
I.
I am unable to agree with Chief Judge Seitz that the relief granted below looks solely to a “past breach of a legal duty” and is therefore improper under the doctrine of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The district court apparently found that welfare recipients who had entered into reimbursement agreements before November 1, 1973, would continue to make payments under those agreements until they were told that the agreements were unenforceable. Chief Judge Seitz appears to draw a sharp line between the making of those agreements in the past and the collection under them in the present. In his view, the use of “legal process” proscribed by 42 U.S.C. § 407 and Philpott v, Essex County Welfare Board, 409 U.S. 416, 93 S.Ct. 590, 34 L.Ed.2d 608 (1975), occurred at the instant the contract was signed. Thereafter, according to this view, the Department of Public Welfare (DPW) merely collected money paid voluntarily, an action section 407 does not forbid.1
I can draw no line so sharp. If the initial agreement amounted to a use of “legal process” forbidden by section 407, then DPW continues to avail itself of that illegal process so long as it accepts payments from recipients who are unaware that those agreements are unenforceable. A contract is a document with continuing vitality, not an action that passes with the moment of signature. The unenforceability of these contracts has not extinguished their force: many recipients continue to make contractual payments because they have not been told that those contracts cannot be enforced. I cannot accept a distinction that categorizes entering the initial contracts as use of legal process, but does not include continuing receipt of payments made under the influence of those contracts as the same use of legal process.
In my opinion, current collection under illegal agreements constitutes a continuing violation of section 407. Therefore, notifying the class of persons making those payments that they need not do so is not relief directed solely to a “past breach of a legal duty,” but is a “necessary consequence of *11compliance in the future with a substantive federal question determination.” Edelman, supra, 415 U.S. at 668, 94 S.Ct. [1347] at 1358. As such, it is not barred by the Eleventh Amendment.2
II.
Nor can I agree with Judge Garth that there is no justiciable case before us. Contrary to Judge Garth’s statements, the named plaintiffs were members of the class that was certified on January 2, 1974: all those in the past, present, and future subject to DPW’s Social Security collection policy and practices. Also, a live dispute did exist between the named plaintiffs and DPW: plaintiffs sought money damages for DPW’s violations of section 407, as well as injunctive and declaratory relief. It was not until Edelman was decided, more than two months after certification of the class, that the district court’s lack of jurisdiction to grant monetary relief became apparent. The concurring opinion suggests that it was also obvious that the named plaintiffs were not entitled to injunctive or declaratory relief. However, until the precise nature of DPW’s allegedly improper collection practices was detailed (a task that, in my view, still awaits accomplishment), it was by no means inconceivable that the district court might grant injunctive or declaratory relief — for example, declaring past and present collections illegal — affecting the rights of the named plaintiffs.3 In the end,
the district court decided that the named plaintiffs were not entitled to such relief, a decision in which they — by failing to press the point on appeal — apparently acquiesce. But just because a court decides that the facts do not entitle a given plaintiff to the relief he requested, it does not follow that no “case or controversy” ever existed between him and the defendant. Other members of the class were granted a form of relief that did not implicate the named plaintiffs’ legal rights, but I know of no requirement that a named plaintiff have a personal staké in every argument asserted on behalf of the class he was certified to represent. Therefore, the court below faced no Article III problems. The named plaintiffs were proper plaintiffs.
On appeal to this court, however, the named plaintiffs do not reassert their claims for declaratory or injunctive relief against DPW’s collection practices. Instead, they content themselves with defending the propriety of the notification relief fashioned by the district court. This relief does not affect their legal rights, as the concurring opinion points out. The proper question, then, is not whether there was a live case or controversy at the outset of the litigation (for there clearly was), but whether the named plaintiffs, by apparently conceding that there is now no disposition of this case that could affect their rights as individuals, have mooted the case *12for all members of the class they were certified to represent.
The certification of the class profoundly affects our mootness inquiry. Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 42 L.Ed.2d 532 (1975).4
Given a properly certified class action, Sosna contemplates that mootness turns on whether, in the specific circumstances of the given case at the time it is before this Court, an adversary relationship sufficient to [sharpen the presentation of issues] exists. In this case, that adversary relationship obviously obtained as to unnamed class members with respect to the underlying cause of action .
Franks v. Bowman Transportation Co., 424 U.S. 747, 755-56, 96 S.Ct. 1251, 1260, 47 L.Ed.2d 444 (footnote omitted) (class action not moot despite named plaintiff’s loss of personal stake in the outcome). The case sub judice while apparently (through the named plaintiffs’ failure to appeal the denial of further injunctive or declaratory relief) no longer alive as to the named plaintiffs, is very much alive as to a large though still indeterminate group of the persons the named plaintiffs were certified to represent. See Sosna, supra, 419 U.S. at 401, 95 S.Ct. 553. Thus, Franks, supra, teaches us that this case is not moot.
III.
I would reverse, however, because I do not think that the requirements for summary judgment were met. Under Fed.R. Civ.P. 56(c), the district court can grant summary judgment only when “there is no genuine issue as to any material fact and . the moving party is entitled to a judgment as a matter of law.” The existence of cross-motions for summary judgment does not affect the requirement that the court find “no genuine issue as to any material fact.”
Cross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist. If any such issue exists, it must be disposed of by a plenary trial and not on summary judgment.
Rains v. Cascade Industries, Inc., 402 F.2d 241, 245 (3d Cir.1968). See 6 J. Moore, Federal Practice ¶ 56.13 (2d ed.1976); 10 C. Wright & A. Miller, Federal Practice & Procedure § 2720 (1973).
The crucial issue of material fact in this case was the existence vel non of DPW’s coercive activity with regard to obtaining reimbursement agreements from Social Security recipients. In granting summary judgment on plaintiffs’ cross-motion, the district court evidently concluded that there was no genuine issue as to the “fact” that DPW engaged in a classwide “collection practice of giving recipients the false impression that they have a legal duty to pay over' their disability benefits.”
The record supports no such conclusion. Only four items bearing on this question appear on the record. First, the district court considered plaintiff Randle’s affidavit detailing DPW’s coercive activity with respect to the signing of her reimbursement agreement. The Commonwealth denied any wrongdoing in that episode and insisted — and continues to insist — that it was at any rate an isolated incident, not reflecting DPW practice in general.
Second, the district court had before it an admission by DPW’s agent in charge of the Philadelphia Claim Settlement Office that it was not DPW policy affirmatively to inform all recipients of their Philpott rights. See Appendix to Brief of Appellant at 52A. This admission would be damaging, however, only if DPW was otherwise involved in actions violative of section 407. *13The district court found that failure to inform, by itself, was not improper. Thus, this admission is not evidence of the coercive practices found by the district court.
Finally, the district court cited two cases from the Pennsylvania Commonwealth Court, Wohlgemuth v. Armacost, 18 Pa. Cmwlth. 394, 336 A.2d 455 (1975), and Good v. Wohlgemuth, 15 Pa.Cmwlth. 524, 327 A.2d 397 (1974). In Armacost, the state court held that continued collection from a recipient who believed herself bound by a prior agreement, while refraining from telling her about the Philpott case, violated section 407. In Good, DPW was held to have violated its own regulations forbidding caseworker involvement in the collection process. Neither in their brief nor at argument in this case did the plaintiffs cite any authority for the proposition that the district court could take judicial notice of the findings of fact in those state court cases. In any event, those cases document only two more episodes of improper DPW activity, hardly an unshakable basis for concluding that the Commonwealth’s denial of a widespread practice “verging on fraud” raised no genuine issue of material fact.
Thus, the district court concluded that DPW was engaged in a widespread practice of deceit with respect to an entire class when only three incidents of such impropriety were before it — two of them perhaps not even properly — and the Commonwealth denied the existence of other examples. I would disagree with the district court’s legal conclusion that this was not a genuine issue of material fact and would remand for further proceedings in this matter, including the assembly of a record precisely detailing various incidents and practices allegedly violative of section 407.5 We do not even know, for example, how many persons, if any, are continuing to reimburse DPW under agreements reached prior to November 1, 1973. In short, the present state of the record simply does not warrant a conelusion that there was no genuine dispute of material fact.
I would reverse and remand.
. Chief Judge Seitz notes that the district court considered DPW’s present policy and practice with respect to reimbursement claims lawful. From this, the Chief Judge concludes that the district court found nothing wrong in any aspect of DPW’s present collection practices and addressed its relief only to past wrongs.
I do not so read the district court’s opinion. In my view, that court found nothing unlawful in DPW’s practices with respect to beneficiaries other than those with whom agreements had been reached before November 1, 1973. The notice ordered by the court was directed at informing persons paying under agreements entered before that date that they could discontinue current and future payments, as well as at informing them of possible rights of recovery for past payments. This indicates that the district court believed that something was wrong with such collections.
Even if the court below did believe that current collection under prior, unenforceable contracts was lawful, we would not be bound by that interpretation of section 407, which I would consider an incorrect conclusion of law.
. There may be Eleventh Amendment problems with the portions of the form of notice that deal only with possible recovery of wrongful payments. In addition, those portions of the notice raise questions of state law with respect to the administrative channels to be used for seeking such recovery; there is some doubt about the ability of this court to resolve those questions at this stage of the proceedings. Because I would remand to the district court, however, I would not reach these problems. It would be sufficient at this stage to hold that the Eleventh Amendment does not deprive the district court of all power to grant relief in this case.
. The district court divided the entire class (of which the named plaintiffs were members) into subclasses (of which they were not) only for purposes of holding certain forms of relief legally available, not for the purpose of conducting the litigation. Indeed, as of the issuance of the court’s order creating the subclasses, the litigation was at an end. Hence, the requirement of Fed.R.Civ.P. 23(a), that those suing on behalf of the class be members of the class, was met: the suit was brought and maintained to final judgment by members of the class certified. Rule 23(a) does not seem to address itself to the fashioning of relief, only to the conduct and maintenance of the suit. See 7A C. Wright & A. Miller, Federal Practice & Procedure § 1790 (1972).
There may be a question of representative ability in some such cases, but none is raised here. Indeed, the only subclass that obtained any relief was the one with no named plaintiff as a member. Therefore, to require dismissal of the suit because of questions about the representation afforded that subclass would seem incongruous.
. “When the District Court certified the propriety of the class action, the class of unnamed persons described in the certification acquired a legal status separate from the interest asserted by [the named plaintiffs].” Sosna v. Iowa, 419 U.S. 393, 399, 95 S.Ct. 553, 557, 42 L.Ed.2d 532 (1975).
. The Commonwealth did not explicitly object to the propriety of summary judgment, but its insistence that Randle’s affidavit is the only evidence of wrongdoing in the record serves to raise the question.